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An anti-terrorism detainment policy trapped by indecision and paralysis (Commentary)

Guantanamo detainee

In this April 16, 2013 video frame grab reviewed by the U.S. military, a shackled detainee meets with medical personnel in Camp 6, at Guantanamo Bay Naval Base, in Cuba. Prison officials opened the prison to journalists, portraying the atmosphere as tense but under control at this detention center following a Saturday clash between prisoners and guards. (AP Photo/Suzette Laboy)

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Renewing his push to close the military prison at Guantanamo Bay, Cuba, President Obama this past week said what many of his critics have been saying for years — that it is “inefficient,” inspires new terrorists, alienates our allies and, above all, “is contrary to who we are.”

Coming in response to the detainee hunger strikers, whose numbers increase every day, Obama’s comments suggest that the inmates are close to accomplishing what others opposed to the prison have not: They’re making it necessary that their cases get resolved. Let’s revisit some myths about the prison.

1. The Guantanamo Bay prison is open for business.

Guantanamo Bay is in limbo. It’s neither closed nor fully open. The prison hasn’t accepted any new detainees since authorities brought Muhammad Rahim al Afghani there in March 2008 — several months after President George W. Bush announced his desire to close the camp.

No one has been added since Obama took office.

Instead, in recent months, non-U.S. citizens accused of international terrorism and apprehended abroad have been brought into federal custody; 12 are held in Manhattan and Brooklyn, awaiting trial or recently convicted.

Still, 166 detainees remain at Guantanamo. Of those, 86 have been cleared to return to their home countries, but diplomatic impasses, the Obama administration’s aversion to returning individuals to Yemen and congressional opposition have halted transfers out of the prison.

Much as in 2002, when Guantanamo Bay opened, the prison — and America’s indefinite detention policy — remain under a cloud of indecision and paralysis.

2. It’s impossible to close Guantanamo.

Resettling the detainees in their home countries or in other nations is a matter of political will on the part of the president, realism on the part of Congress and trust in the nation’s sizable counterterrorism measures. But it is doable.

Obama recently pledged to renew his push for Congress to reduce restrictions on prisoner transfers. The president could start by finding allies who might change their minds, as Sen. Dianne Feinstein, D-Calif., did last month, and support reversing the ban on transferring detainees to Yemen.

Defense Secretary Chuck Hagel could exercise the authority provided by Congress in the National Defense Authorization Act of 2012 to waive the restrictions and approve the transfer of some of the individuals cleared for release to countries other than those with confirmed cases of recidivism.

Finally, recidivism must be seen for the red herring that it is.

According to government estimates, only a small percentage of released detainees have returned to violence.

If need be, our intelligence services and those of foreign governments can identify and track released detainees. Terror threats can be monitored and managed without keeping individuals in indefinite detention, especially when there isn’t enough information to charge them with crimes.

3. Guantanamo detainees have been treated more harshly than inmates in federal prisons.

Until the recent confrontations between guards and prisoners, Guantanamo held most of its detainees in relatively lenient conditions, especially compared with federal prisons.

Terrorism suspects in pretrial and post-conviction custody in the United States — at the supermax prison in Colorado or at other maximum-security prisons — are often kept in areas that are versions of solitary confinement. Communication is severely limited, and in many instances, only one hour in 24 is spent in the light of day.

As recently as this past fall, as many as 130 Guantanamo detainees were living in communal areas, many with access to Skype, television and a soccer field. This more relaxed policy was based on the premise that creature comforts could compensate for the lack of hope and due process afforded to the detainees.

Yet since the hunger strikes began in February, conditions have become harsher. The recent turn toward feeding tubes, individual cells and violence between detainees and guards has made Guantanamo more like a dungeon, its inmates tormented by lives without resolution or release.

If the hunger strike is resolved without deaths, more open living conditions might resume. And once again the federal prison system would be the harsher form of incarceration.

4. The military commission system offers the best chance of convictions in the war on terror.

The commissions were well-intentioned, but the trials, including those of the Sept. 11 defendants, are taking forever. In federal court, they would have concluded long ago.

Since the military commissions process began in 2006, only seven individuals have been convicted. All of those convictions are being challenged, two have been overturned and some of those remaining could still be in jeopardy.

Meanwhile, hundreds have been convicted of terrorism-related crimes in the federal court system since 2001. At Guantanamo, only six of the remaining 166 detainees are in the process of being tried.

In recent months, several incidents of governmental impropriety have further eroded the legitimacy of the commissions system, including the discoveries of secret listening devices made to look like smoke detectors in attorney-client meeting rooms, a “kill switch” that allowed the CIA to turn off the courtroom’s public audio feed, microphones that could pick up conversations between defense attorneys and their clients in court, and the hacking of 540,000 defense e-mails that were “mistakenly” sent to prosecutors.

All that’s left is blind faith in a system that is becoming increasingly unstable.

5. Guantanamo has indelibly stained America’s reputation.

If the hunger strikers die, Guantanamo will become an even stronger terrorist recruitment tool. While Obama missed the chance at the start of his presidency to show that detainees can be treated more justly and compassionately than they were under his predecessor, any positive change could begin to repair the damage to America’s reputation.

The administration’s one-person-at-a-time approach to closing Guantanamo has proved fruitless. Bold gestures are needed — for starters, the cleared detainees should be sent to their home countries, even to Yemen.

Additionally, paying restitution to detainees and helping them reintegrate into their home countries or new locations would go a long way toward eliminating the stain of Guantanamo.

Time is of the essence.

Of the 100 hunger-striking detainees, four are hospitalized, and 23 are being force-fed. The best option is to release the inmates who can’t be tried, end the policy of detention outside the laws of war and restore the sense of moral dignity that has withered with every day of Guantanamo’s existence.

As Obama said this past week, “It needs to stop.”

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Karen J. Greenberg, the author of “The Least Worst Place: Guantanamo’s First 100 Days,” is the director of Fordham Law School’s Center on National Security.